Khan v Shariff - [2018] NZCA 583

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA153/2017
[2018] NZCA 583

BETWEEN	MUHAMMAD SHAMSUD-DEAN SAHU KHAN Appellant
AND	MOHAMMED SHARIFF Respondent

Hearing:	27 June 2018
Court:	French, Duffy and Katz JJ
Counsel:	Appellant in person No appearance for Respondent
Judgment:	13 December 2018 at 3 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Dr Sahu Khan claims that, as a result of fraudulent misrepresentations made to him by the defendant Mr Shariff, he suffered significant loss. He issued proceedings against Mr Shariff in the High Court, seeking recovery of damages in excess of FJD 650,000.
Mr Shariff did not file a statement of defence and the case proceeded by way of formal proof before Fitzgerald J. In her decision, the Judge held the claim had not been proved and declined to grant any relief.[1]
[1]Sahu Kahn v Shariff [2017] NZHC 294 [HC decision].
Dr Sahu Khan now appeals the decision on the grounds that the Judge’s analysis was flawed. In particular, he says the Judge should have accepted his evidence because it was uncontradicted.

Background

Dr Sahu Khan is a lawyer. He practised in Fiji, where he had a high profile and where he came to know Mr Shariff, before emigrating to New Zealand in May 2011.
Dr Sahu Khan contended that Mr Shariff contacted him in late 2012 and early 2013 claiming to be well acquainted with Fiji’s Prime Minister and Attorney-General. He also allegedly told Dr Sahu Khan that in view of the latter’s legal qualifications, the Prime Minister and Attorney-General wished to appoint him to the Fiji Constitutional Review Committee and/or as Chief Legal Officer to the Fiji Government. It was said the annual salary would be in the vicinity of $3 m.
According to Dr Sahu Khan, Mr Shariff also told him that in light of Fiji’s political situation, the Prime Minister and Attorney-General wanted to conduct the dealings relating to the appointment indirectly via a representative of Dr Sahu Khan based in Fiji. Dr Sahu Khan accordingly appointed Mr Shariff as his representative.
Then followed a series of representations about various sums that Mr Shariff told Dr Sahu Khan he needed to pay in order to facilitate the appointment. These representations were alleged to have been made between late 2012 and mid 2015. Dr Sahu Khan told the Judge he trusted Mr Shariff and in reliance on the representations he forwarded a total of approximately FJD 173,000.
No announcement of any appointment in favour of Dr Sahu Khan was however ever made. Dr Sahu Khan then issued proceedings in tort for deceit, seeking recovery of all the money he had paid to Mr Shariff. He also sought recovery in deceit of a further sum of FJD 480,000 which he claimed Mr Shariff had promised to pay him as special damages in the event the appointment did not eventuate.

The High Court decision

Justice Fitzgerald identified the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Khan v Shariff

Details

AGLC: Khan v Shariff [2018] NZCA 583
Case: [2018] NZCA 583
Decision Date: 13 December 2018 at 3 pm

CaseChat Overview and Summary

In Khan v Shariff, the Court of Appeal of New Zealand was asked to consider an appeal brought by Dr Sahu Khan against the decision of the High Court, which dismissed his claim against Mr Shariff for fraudulent misrepresentation. Dr Sahu Khan alleged that Mr Shariff had fraudulently represented to him that he would be appointed to a high-paying position in Fiji, and that in reliance on those representations, he transferred a significant sum of money to Mr Shariff. The High Court held that the claim had not been proved and declined to grant any relief. On appeal, Dr Sahu Khan argued that the Judge’s analysis was flawed and that the evidence should have been accepted as uncontradicted. The Court of Appeal considered the evidence and found that there was insufficient evidence to justify a finding that any of the representations was false at the time it was made or that Mr Shariff had the requisite dishonest intention. The Court also found that the claim for special damages could not succeed as it was in essence a claim for breach of contract, which was not pleaded and the exact terms of the contract were not certain. The appeal was dismissed, and the decision of the High Court was upheld. The Court of Appeal concluded that the Judge was correct to refuse to enter judgment against Mr Shariff, given the unsatisfactory and unreliable evidence provided by Dr Sahu Khan.

Orders